The Federal Republic of Nigeria has filed its appeal against the decision of the Code of Conduct Tribunal (CCT) to acquit Senate President Bukola Saraki of false asset declaration charges.

The appeal was filed by attorneys Rotimi Jacobs and Pius Akutah at the Court of Appeal in Abuja.

The appellants argued that the CCT chairman, Danladi Umar, “erred in law” by upholding the no case submission filed by Mr. Saraki.

Read the full appeal below:

 

FRN V. SARAKI – NOTICE OF APPEAL

IN THE COURT OF APPEAL

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

APPEAL NO:…………………..

CHARGE NO: CCT/ABJ/01/15

BETWEEN

FEDERAL REPUBLIC OF NIGERIA​​) APPELLANT 

AND

DR. OLUBUKOLA ABUBAKAR SARAKI​) RESPONDENT

NOTICE OF APPEAL

TO THE REGISTRAR OF THE COURT OF APPEAL

We, ROTIMI JACOBS, SAN and PIUS AKUTAH, ESQ., the prosecutors in the above case and being desirous of appealing against the decision of the Code of Conduct Tribunal holden at Abuja dated 8th June, 2017 (but delivered on 14th June, 2017) under Section 241 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria,

DO HEREBY GIVE NOTICE OF APPEAL on the following grounds:

1.​ GROUND ONE

The Code of Conduct Tribunal erred in law in its lead ruling delivered by Hon. Danladi YakubuUmar, when it held that:

“The Tribunal has carefully analyzed all the testimonies of the witnesses of the prosecution and the submissions of counsel to the defence on the no case submission and response of the prosecution opposing the no case submission, we equally perused through the reply on points of law submitted by the defence on issues of law raised by the prosecution in their written address. It is the belief of this Tribunal that all the testimonies of the prosecution witnesses adduced in this trial has been so discredited as a result of cross examination and is manifestly unreliable that no reasonable Tribunal could safely convict on it. See IBEZIAKO .V. COMMISSIONER OF POLICE (1963) ALL NLR 61. The Tribunal equally observed that the evidence adduced by the prosecution is far from proving essential elements in the alleged offences against the Defendant.”

PARTICULARS OF ERROR

i.​ The learned members of the Tribunal in their consideration of no case submission failed in their duty to look at the offences charged, the ingredients of the offence and the evidence adduced by the prosecution before upholding the Respondent’s no case submission.

ii.​ The learned members of the Tribunal failed to analyze and evaluate the evidence of prosecution witnesses before reaching their conclusion that there is no case made out against the Respondent.

iii.​ The Tribunal failed in its duty to point out the material evidence adduced by the prosecution witnesses touching the ingredients of the offence charged that was discredited by the Respondent’s counsel during cross examination.

iv.​ The learned members of the Tribunal failed to consider and apply the decision of the Supreme Court in Daboh .v. State (1977) 5 SC 197 at 315, where the Supreme Court heldthat if the submission is based on discredited evidence, such discredited evidence must be apparent on the face of the record and that if such is not apparent, then the submission is bound to fail.

v.​ The learned members of the Tribunal failed to point out any apparent discredited evidence on the face of the record before it upheld the submission of a no case.

vi.​ The Tribunal failed in its duty to point out the essential ingredients of the offences charged and the evidence adduced by the prosecution to show that the available evidence could not establish the ingredients of the offences.

vii.​ The Tribunal failed to apply the provisions of sections 302 and 303 of the Administration of Criminal Justice Act, 2015 in upholding the no case submission made by the Respondent.

viii.​The Tribunal denied the Appellant its right to fair hearing guaranteed by section 36 of the 1999 Constitution (as amended) by its failure to dispassionately consider the evidence adduced by the prosecution against the Respondent.

2.​ GROUND TWO

The Code of Conduct Tribunal erred in law in its lead ruling delivered by its Chairman, Hon. Danladi Yakubu Umar, when it held that:

“In the light of the foregoing, the Tribunal has nothing to do other than to discharge and acquit the Defendant.

PARTICULARS OF ERROR

i.​ The learned members of the Code of Conduct Tribunal in their ruling on a no case submission dated 8th June, 2017 upheld the submission of no case made by the Respondent and discharged and acquitted him on that application.

ii.​ The power of the Tribunal when upholding a no case submission is to discharge the Defendant and not to acquit him.

iii.​ By section 302 of the Administration of Criminal Justice Act, 2015 the only order the Tribunal can made when a no case submission is upheld is an order of discharge and not acquittal.

iv.​ The Tribunal’s order acquitting the Appellant is ultra vires the power of the Tribunal.

3.​ GROUND THREE

The Code of Conduct Tribunal erred in law in its lead ruling delivered by Hon. Danladi YakubuUmar, when it held that:

“From the testimony of PW1, he repeatedly stated that his team has never invited the Defendant. In other words, their investigation was more of intelligence gathering than conventional investigation known to all. Where a person is being investigated, especially by a commission like EFCC, it behooves on the Commission to invite the defendant so that the truth of the matter can be established.”

PARTICULARS OF ERROR

i.​ The Tribunal upheld a no case submission on the ground that the Economic and Financial Crimes Commission that investigated the case did not invite the Defendant so that “the truth of the matter can be established.”

ii.​ The findings of the Tribunal that the EFCC did not invite the Respondent is not supported by the evidence particularly exhibit 45 tendered by the prosecution which is the handwritten statement of the Respondentmade under caution.

iii.​ PW1 never said that the EFCC did not invite the Respondent in the course of investigation of the petition against him but that PW1 did not personally invite the Defendant.

iv.​ The finding of the Tribunal is against the evidence adduced by the prosecution before it.

v.​ The Tribunal’s decision is against its earlier ruling delivered on 24th March, 2016 and the decision of the Court of Appeal in Appeal No: CA/A/172C/2016 where it was decided that the defendant needs not to be invited.

vi.​ The Tribunal wrongly overruled the decisions of the Court of Appeal and itself.

4.​ GROUND FOUR

The Code of Conduct Tribunal erred in law in its lead ruling delivered by Hon. Danladi YakubuUmar when it held that:

“PWII who is the Head of Funds Transfer in his testimony stated that there was a fire incident that engulfed the entire unit of Guaranty Trust Bank Funds Transfer and so many documents were lost. PWIII in his own testimony stated that the Chairman of the Code of Conduct Bureau gave him an oral instruction to go and join the team of investigators from the EFCC to investigate the defendant and he also stated that after completing their investigation, he, PWIII came back to his Chairman CCB and gave his oral report of the investigation. This is absurd, the Tribunal finds it difficult to accept the seriousness of this kind of investigation at all.”

PARTICULARS OF ERROR

i.​ The Tribunal upheld the no case submission of the Respondent on the ground that PWII testified that fire engulfed Guaranty Trust Bank Funds Transfer Department which occasioned loss of many documents and that PWIII received oral instruction from the Chairman of the Code of Conduct Bureau and also submitted oral instruction.

ii.​ The Tribunal only used part of the testimony of PWII touching the loss of certain documents on transfer of funds without considering relevant testimony of PWII that proved the ingredients of the offences charged.

iii.​ The Tribunal failed to consider other documents and exhibits made available by Guaranty Trust Bank that were not lost as a result of the fire incident and that also supported the case of the prosecution.

iv.​ The Tribunal unfairly closed its eye to the relevant testimony of PWII and the various documents generated by the Guaranty Trust Bank which were admitted as evidence before the Court.

v.​ The approach of the Tribunal in looking only at the documents that were lost to fire incident denied the prosecution its right to fair hearing.

vi.​ The receipt of oral instruction from theChairman of the Code of Conduct Bureau and the submission of report orally to the said Chairman by PWIII are not ingredients of the offence and are not relevant to the consideration of no case submission.

vii.​ The no case submission made by the Respondent was wrongly upheld by the Tribunal.

5.​ GROUND FIVE

The Code of Conduct Tribunal erred in law in its ruling delivered by Hon. W. A. Agwadza when it held that the testimony of PWIII is hearsay evidence.

PARTICULARS OF ERROR

i.​ PWIII is an investigator with the Code of Conduct Bureau who gave evidence of the role he played, what he saw and the outcome of his investigation.

ii.​ The Tribunal failed to consider the decisions of the Appellate Court in the cases of Ekpo .v. State (2001) 7 NWLR (Pt. 712) 292 at 304,Ugwumba .v. State (1993) 5 NWLR (Pt. 296) 660 at page 668 cited before it by the prosecution that the testimony of an investigator on the report of his investigation is not hearsay evidence.

iii.​ The Tribunal failed to be bound by the judicial precedent of a superior court of record.

iv.​ The Tribunal failed to consider paragraphs 11 (2), (3) and (13) of Part 1, 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which imposed the onus of proof on the Respondent to justify his declaration.

v.​ The evidence of PWIII is not hearsay evidence

6.​ GROUND SIX 

The Code of Conduct Tribunal erred in law in its ruling delivered by Hon. W. A. Agwadza when it held that:

“Turning and making reference to ‘the team’ referred to in the evidence of PW3, ‘the team’ so constituted is unknown to law and never contemplated by the Act under which the Defendant is being tried. ‘The team’ is made up of CCB, the DSS and EFCC according to the testimony of PW1 in the course of cross examination. The combined effect of the inadmissible evidence and the illegality of the team that investigated the Defendant is that the charge is incurably defective, has occasioned a miscarriage of justice, and permeates throughout the entire proceedings in this case. Hearsay evidence according to a plethora of judicial authorities is not admissible for the purpose of establishing criminal liability. See the case of Buhari .v. Obasanjo (2005) ALL FWLR (pt.273) 1. It is trite law that the evidence acquired to establish a crime must be evidence of a witness who saw or heard or took part in the transaction upon which he was giving evidence.”

PARTICULARS OF ERROR

i.​ Hon. W. A. Agwadza found that the investigation by a team consisting of the Code of Conduct Bureau, EFCC and DSS is unknown to law and cannot form the basis ofthe trial of the Respondent.

ii.​ The Respondent by his own application dated 1st March, 2016 had raised the same issue that it is only the Code of Conduct Bureau that could investigate him and that the power of investigation cannot be delegated to the EFCC or any other body or agency.

iii.​ The Tribunal by its ruling delivered on 24thMarch, 2016 ruled and dismissed the application of the Respondent and he appealed to the Court of Appeal in Appeal No: CA/A/172C/2016. 

iv.​ The Court of Appeal in the Judgment delivered 27th October, 2016 by Aboki, PJCA dismissed the appeal and held that “there is nothing in any law preventing the Code of Conduct Bureau an agent of the Federal Government from collaborating or acting in concert with any other organs of the Federal Government which are also engaged in investigations and prosecution of criminal matters in order to achieve its mandate under the constitution and the law.”

v.​ By the ruling of Hon. Agwadza, he has unwittingly sat on appeal and overruled the earlier decision of the Tribunal and the decision of the Court of Appeal.

vi.​ The decision of the Court of Appeal in Appeal No: CA/A/172C/2016 between Dr. Olubukola Abubakar Saraki .v. FRN, is binding on the Code of Conduct Tribunal.

vii.​ Hon. Agwadza refused to be bound by the decision of the Court of Appeal notwithstanding that the prosecution in paragraphs 8.44 – 8.47 of its address referred the Tribunal to the said decision.

viii.​ The decision of Hon. Agwadza borders on judicial rascality and impertinence.

7.​ GROUND SEVEN

The Code of Conduct Tribunal erred in law in its ruling delivered by Hon. W. A. Agwadza, when it held that the Appellant failed to produce the original asset declaration forms of the Respondent and his statement (Exhibits 1 to 6, 26 and 45) when they were available and as such there is no case made out against the Respondent.

PARTICULARS OF ERROR

i. The Tribunal raised the issue of tendering certified true copy of the asset declaration forms of the Respondent and his statement as against the original of those exhibits, suo motuand resolved the issue against the Appellant without hearing the Appellant.

ii. The Tribunal denied the Appellant its right to fair hearing as guaranteed by Section 36 ofConstitution of the Federal Republic of Nigeria, 1999 (as amended).

iii. Exhibits 1 to 6, 26 and 45 qualify as public document under Section 102 of the Evidence Act, 2011 and there is no law that makes only the original of public document admissible in law.

iiii. The Tribunal failed to consider the provisions of Sections 102, 104, 105 and 146 of the Evidence Act, 2011 to the effect that a certified true copy of a public document or part thereof may be produced in proof of the contents of the public document or a part thereof.

v. The Tribunal is mandated under the provision of Section 146 of the Evidence Act, 2011 to presume the genuiness of certified true copy of a public document.

vi. The Tribunal effectively overruled the decisionsof the Supreme Court in Odubeko v. Fowler(1993) 7 NWLR (Pt. 308) 637 and the Court of Appeal in Tumo v. Muwana (2000) 12 NWLR (Pt. 681) 370 that courts must presume certified true copies of public document as genuine and act on it unless there is a contrary evidence.

vii. The Tribunal completely closed its eyes to the fact that the prosecution produced the original of the assets declaration forms before the Tribunal and requested the Tribunal and the defendant to compare the original with the certified true copies without any objection from the defendant.

8.​ GROUND EIGHT

The Code of Conduct Tribunal erred in law in its ruling delivered by Hon. W. A. Agwadza, when it held that the Appellant failed to respond to seven issues raised by the Respondent in his submission of no case and therefore the Appellant is deemed to have admitted the issues 

PARTICULARS OF ERROR

i.​ The Tribunal failed to read and consider the written address of the prosecution and this led to the erroneous conclusion that the prosecution did not respond to the said issues.

ii.​ The prosecution proffered sufficient arguments against the arguments canvassed by the Respondent in respect of the seven issues itemized by Hon. W. A. Agwadza.

iii.​ The Respondent in his address on points of law knew that the Appellant addressed, the so-called seven issues and gave his response on points of law to the prosecution’s address.

iv.​ The decision of the Tribunal that the Appellant is presumed to have conceded the seven points raised by the Respondent showed that the Tribunal was biased against the prosecution and denied the prosecution the right to fair hearing.

9.​ GROUND NINE

The Code of Conduct Tribunal erred in law in upholding the no case submission raised by the Respondent at the close of prosecution’s case and in discharging the Respondent.

PARTICULARS OF ERROR

i.​ By the authorities cited, the prosecution only has a duty to show that there are some infractions of the Code of Conduct prescribed for public officers under the Constitution and the prosecution had established those infractions through his witnesses.

ii.​ By the provisions of paragraphs 11 (2), (3) and (13) of Part 1, 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), once the Code of Conduct form filled by the public officer is investigated and found to be false or that some assets are beyond the legitimate income of the public officer or that the assets were acquired by means of corrupt practices, the public officer concerned is deemed to have breached the Code of Conduct and it is for him to show to the Tribunal that he did not commit the offences.

iii.​ The paragraph in the Constitution referred to above clearly puts the onus of proof on the Defendant/Respondent to show that there is no infraction.

iv.​ The presumption of innocence guaranteed by section 36 (5) of the Constitution, by its proviso recognizes paragraphs 11 (2), (3) and (13) of Part 1, 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that has placed the onus of proof on the public officer.

v.​ The paragraphs 11 (2), (3) and (13) of Part 1, 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) prescribe strict liability offences that clearly remove the proof of mens rea by the prosecution.

vi.​ The Tribunal failed to give effect to paragraphs 11 (2), (3) and (13) of Part 1, 5thSchedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

10.​ GROUND TEN

The Code of Conduct Tribunal erred in law in entertaining and upholding a no case submission raised by the Respondent at the close of prosecution’s case when the onus of proof is on the Respondent to show that there was no infraction in the Code of Conduct Forms filled and sworn to by him before a High Court Judge.

PARTICULARS OF ERROR

i. By the provisions of paragraphs 11 (2), (3) and (13) of Part 1, 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), once the Code of Conduct form filled by the public officer is investigated and found to be false or that some assets are beyond the legitimate income of the public officer or that the assets were acquired by means of corrupt practices, the public officer concerned is deemed to have breached the Code of Conduct and it is for him to show to the Tribunal that there was no infraction in the form.

ii. The Honourable Tribunal wrongly placed the onus of proof on the prosecution contrary to paragraphs 11 (2), (3) and (13) of Part 1, 5thSchedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

iii. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) clearly excluded the presumption of innocence on the allegation of infraction of the Code of Conduct by public officers and the Tribunal wrong applied the presumption of innocence contrary to the constitutional requirement.

iv.​ The presumption of innocence guaranteed by section 36 (5) of the Constitution, by its proviso recognizes paragraphs 11 (2), (3) and (13) of Part 1, 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that has placed the onus of proof on the public officer or the defendant.

v.​ The Tribunal’s decision is unconstitutional and without jurisdiction.

11.​ GROUND ELEVEN

The Judgment of the lower Tribunal is unwarranted, unreasonable and against the weight of evidence.

 

 

 

…………………………​​​​​….…………………………​

Prosecutor​​​​​​                    Prosecutor

ROTIMI JACOBS, SAN ​​​​   PIUS AKUTAH, ESQ.

​​​​​​​Assistant Chief State Counsel​​​

 

Dated this ………………………… day of ……………………………… 2017.

 

PARTICULARS OF TRIAL

1.​ Date of trial and ruling: 14th June, 2017.

2.​ In what Court tried? The Code of Conduct Tribunal, holden at Abuja.

3.​ In what Court of Appeal? Court of Appeal, Abuja.

4.​ Sentence: Not applicable (ruling on a no case submission).

5.​ Reliefs: An order setting aside the ruling of the Code of Conduct Tribunal delivered on14th June, 2017 upholding the no case submission raised by the Respondent at the close of the prosecution’s case. An order calling upon the Respondent to enter hisdefence.

PERSONS DIRECTLY AFFECTED BY THIS APPEAL

 

 

1. FEDERAL REPUBLIC OF NIGERIA​ C/O THE PROSECUTORS

ROTIMI JACOBS, SAN

PIUS AKUTAH, ESQ.

FEDERAL MINISTRY JUSTICE,

FEDERAL MINISTRY OF JUSTICE COMPLEX,

CENTRAL BUSINESS DISTRICT,

ABUJA.

 

2.​ DR. OLUBUKOLA ABUBAKAR SARAKI​ C/O HIS COUNSEL

KANU G. AGABI, (CON), SAN

KANU G. AGABI & ASSOCIATES.

MABUSHI-ABUJA.

Senate President Bukola Saraki

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